The Basis of Moral Liability to Defensive Killing

Philosophical Issues, 15, Normativity, 2005 THE BASIS OF MORAL LIABILITY TO DEFENSIVE KILLING Jeff McMahan Rutgers University There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and does not consent to be killed. Although the killing would wrong the victim, it might be justified by the necessity of averting some disaster that would otherwise occur. In other instances of permissible killing, however, the justification appeals to more than consequences. It may appeal to the claim that the person to be killed has acted in such a way that to kill him would neither wrong him nor violate his rights, even if he has not consented to be killed or to be subjected to the risk of being killed. In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability in both tort law and criminal law, my concern in this article is with moral rather than legal liability. Liability is different from desert. The claim that someone deserves to be killed implies that there is a reason to kill her even if it is possible for no one to be killed; but the claim that someone is liable to be killed has no such implication. Liability is the broader notion: desert implies liability but liability does not imply desert. Thus, if a person deserves to be killed, it follows that he is liable to be killed, but he can be liable to be killed without deserving to be killed. My focus will be on forms of liability that do not involve desert; I will not consider punitive or retributive killing. My focus will instead be primarily on liability to defensive killing, though I will also consider whether there can be liability to killing that preserves life but is not strictly defensive because the person to be killed is not the cause of the threat to be averted. Liability, of course, also extends to forms of harmful treatment other than killing, but for simplicity of exposition I will focus on moral liability to be killed. Much of what I will say, however, can be generalized to other forms of harming. The Basis of Moral Liability to Defensive Killing 387 The question I will address is: ‘‘What is the basis of liability to killing?’’ Or, more precisely: ‘‘What must a person who does not deserve to die have done to make it the case that he would not be wronged by being killed?’’ I will examine two widely held accounts of the basis of liability to defensive killing before sketching the outlines of what I think is the most promising account. The Rights-Based Account The Rights-Based Account holds that what makes a person liable to defensive killing is that he will otherwise violate a right that is sufficiently stringent for killing to be a proportionate means of prevention.1 According to its most original and influential exponent, Judith Jarvis Thomson, this account offers a justification for self-defensive killing in cases that pose problems for other accounts. It explains, for example, how it can be permissible to kill an ‘‘innocent threat,’’ a moral agent who through voluntary action poses an unjust threat but is not culpable for doing so. Here is an example. The identical twin brother of a notorious murderer is driving during a stormy night in a remote area when his car breaks down. Unaware that his brother has recently escaped from prison and is thought to be hiding in this same area, he knocks on the door of the nearest house, seeking to phone for help. On opening the door, the armed and frightened resident mistakes the harmless twin for the murderer and lunges at him with a knife. Assuming that this is the only way to save his own life, may the twin kill the resident? Most people believe that he would be justified in doing so, even if the resident is acting reasonably in the circumstances and thus is fully excused for the threat he poses to the twin. And the Rights-Based Account provides an explanation of why the twin would be justified: because the resident would otherwise violate the twin’s right not to be killed, the resident lacks a right not to be killed by him. In short, the resident makes himself liable to be killed. Another type of case that is even more problematic for many accounts of self-defense involves a ‘‘nonresponsible threat,’’ a person who poses an unjust threat without being in any way responsible for doing so. Here is Thomson’s example. A fat man is enjoying a picnic on a cliff directly above the deck on which you are lying with your leg in traction. Suddenly a villain pushes him off the cliff. If he lands on you he will kill you; but he will survive because you will cushion his fall. You cannot move aside but can save yourself by hoisting your sun umbrella and impaling him on it.2 388 Jeff McMahan Again, most people believe that you would be justified in killing the fat man. And again the Rights-Based Account offers an explanation, which is that, because the fat man will otherwise violate your right not to be killed, he lacks a right not to be killed by you. He too is liable. Some have argued that it is not true that the fat man will violate your right if you do not kill him, since only a morally responsible agent can violate a right. Even on Thomson’s own account, for a person to have a right is just for others to be morally constrained in certain ways.3 And just as a falling boulder or a charging tiger cannot be morally constrained and therefore cannot violate a right, so also a person cannot be morally constrained except in the exercise of responsible agency. Since the fat man cannot be morally constrained from having his body used by someone else against his will, he does not threaten your right when his body is hurled at you. This does not, of course, show that the Rights-Based Account is wrong. It if is correct that the fat man would not violate your right, all this shows is that the Rights-Based Account does not, after all, have the intuitively appealing implication that nonresponsible threats may be liable to defensive killing. Here is another case that challenges the Rights-Based Account. It is familiar from discussions of the Doctrine of Double Effect. A tactical bomber fighting in a just war has been ordered to bomb a military facility located on the border of the enemy country. He knows that if he bombs the factory, the explosion will kill innocent civilians living just across the border in a neutral country. But this would be a side effect of his action and would be proportionate to the contribution that the destruction of the facility would make to the achievement of the just cause. As he approaches, the civilians learn of his mission. They cannot flee in time but they have access to an anti- aircraft gun. The traditional question is how the tactical bomber can be justified in bombing the facility when it would not be justifiable for a terror bomber to drop a bomb in the same spot, producing the same effects, with the intention of killing the civilians. My question is different. Assuming that the tactical bomber would be morally justified in dropping his bomb, would the civilians be justified in shooting him down in self-defense? To explain why this case challenges the Rights-Based Account, I need to distinguish two ways of acting against a right. When one is morally justified in doing what another has a right that one not do, one infringes her right. When one acts without justification in doing what another has a right that one not do, one violates her right.4 Because the tactical bomber acts with justification, he will merely infringe the civilians’ rights. The usual assumption is that one does not lose one’s rights by virtue of morally justified The Basis of Moral Liability to Defensive Killing 389 action. If that is right, the tactical bomber retains his right not to be killed even though he will otherwise infringe the civilians’ rights. According to the Rights-Based Account, therefore, the civilians may not kill him in self- defense. But this is hard to believe—unless, perhaps, his mission is so important that they are morally required to sacrifice themselves for the sake of its success. Can the Rights-Based Account accommodate the common intuition that the civilians may kill the tactical bomber in self-defense? It cannot be claimed that his right is overridden by morally weightier considerations; for the stipulation that his act would be proportionate entails that the failure of his mission, which would be a consequence of their killing him, would be worse from an impartial perspective than their being killed. Perhaps then, contrary to the common assumption, one may lose rights by threatening to infringe rights. If so, then the fact that the tactical bomber will otherwise infringe their right not to be killed means that he lacks a right not to be killed by them—that is, he makes himself liable to be killed by them. But this too is hard to believe.

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